BREAKING: GUSA Constitutional Council put Dagher-Ibrahim, Lamb-Breen back on ballot

Celebrate!

At 1:33, the GUSA Constitutional Council sent the following email:

Dear GUSA Candidates, Members of and Advisors to GUSA, Members of Campus Media, and Fellow Hoyas,

Below are the GUSA Constitutional Council Rulings RE: the Appeal Brought forth by the Lamb-Breen, Dagher-Ibrahim, and Mogil-Klein GUSA, Presidential-Vice Presidential Tickets on Wednesday, February 25, 2009.

The Council wishes to express our appreciation to you for your thoughtful comments and your respect for each other, this process, andd our decisions.

Hoya Saxa,

Andrew Mok (SFS’ 09), Justin Weiss (COL ‘09), and Shane Giuliani (SFS ‘09) GUSA Constitutional Councilors

The email also reveals that Mogil-Klein vehemently opposed the suspension of the election that did not include the two disqualified tickets, and opposed the reinstatement of those two tickets on the ballot.
Full text of the ruling after the jump.

On Wednesday, February 25, 2009, the GUSA Constitutional Council (henceforth, Council) decided to hear a total of three cases brought before it.

In the first two cases, the Lamb-Breen GUSA Presidential-Vice Presidential ticket and the Dagher-Ibrahim GUSA Presidential-Vice Presidential ticket appealed their Monday, February 23, 2009, disqualification by the Election Commission (henceforth, E.C.) for “a second flyering/posting policy violation” on the grounds that the E.C. “incorrectly or inadequately” applied campaign rules (referencing Bylaw 16.08(a)). The Dagher-Ibrahim ticket’s appeal also claimed that the E.C. demonstrated “bias” in its decision to disqualify candidates (referencing Bylaw 16.08(b)). Because their appeals were similar in nature, the Council decided to combine the cases into one consolidated case.

In the third and final case, the Mogil-Klein GUSA Presidential-Vice Presidential ticket appealed the E.C.’s Tuesday, February 24, 2009, decision to suspend the election. The appeal was made on the grounds that the suspension of the election was “illegal.” The ticket also petitioned the Constitutional Council to accept the Election Commission’s decision concerning the two disqualifications described above as legal.

The Council heard the Lamb-Breen/Dagher-Ibrahim case first, allowing both sides of the case time to present their arguments. The Council heard the Mogil-Klein case immediately thereafter, again allowing both sides of the case time to present their arguments. In addition, the Council heard comments on each case from other parties after both sides presented their arguments.

Ruling re: the consolidated case brought before the Council by the Lamb-Breen and Dagher-Ibrahim tickets:

The Constitutional Council rules that the E.C. is not authorized to disqualify candidates for violations of any rules not explicitly stated in the Bylaws to the GUSA Constitution, pursuant to Bylaw 16.06, which states, “No other restrictions other than those stated here [in Bylaws 16.01-16.05] shall apply to campaigning.”

Additionally, as Bylaw 17.04 states, “The Election Commission must run the Senate and Presidential elections according to the election by-laws established by the Senate. The Election Commission does not have the power to make any new rules for election or modify election regulation.”

Pursuant to Bylaws 16.06 and 17.04, the E.C.’s disqualification of the ticket based on the violation of rules not explicitly stated in the Bylaws, such as a “flyering/posting policy violation,” was outside of the E.C.’s authority.

The Council further rules that the E.C. exceeded their authority in the disqualification of the Lamb-Breen and the Dagher-Ibrahim tickets pursuant to Bylaws 16.06 and 17.04. However, the Council finds no evidence to support the ancillary claim of “bias” in the E.C.’s application of the rules.

The Monday, February 23, 2009, disqualification of the Lamb-Breen ticket by the E.C. is hereby overturned, and the Lamb-Breen ticket shall be considered qualified for election.

The Monday, February 23, 2009, disqualification of the Dagher-Ibrahim ticket by the E.C. is hereby overturned, and the Dagher-Ibrahim ticket shall be considered qualified for election.

The Council notes that the Election of Tuesday, February 24, 2009, excluded the two tickets on the grounds of disqualifications here overturned, making for an invalid election.

Ruling re: the case brought before the Council by the Mogil-Klein ticket:

The Council rules that the E.C. is not authorized under the Bylaws to suspend the election. The authority to suspend the election is not one of the powers of the E.C. as enumerated in the Bylaws (in particular, Section 16 and Section 17), and is therefore outside of the E.C.’s authority. The Council rules that the Tuesday, February 24, 2009, suspension of the election by the E.C. was not authorized by (or, in the language of the Mogil-Klein ticket’s appeal, “illegal” according to) the Bylaws, making for an invalid election.

For the reasons stated in the Ruling re: the consolidated case brought before the Council by the Lamb-Breen and Dagher-Ibrahim tickets and pursuant to Bylaws 16.06 and 17.04, the Council does not recognize the Mogil-Klein ticket’s petition to accept the Election Commission’s decisions concerning the two disqualifications described above as legal.

The Council overturns the disqualifications of the Lamb-Breen ticket and of the Dagher-Ibrahim ticket and rules that both tickets shall be considered qualified for election.

The Council rules that the Election of Tuesday, February 24, 2009, shall be considered invalid because it excluded two qualified tickets without the proper authority to do so and was disrupted by an unauthorized suspension.

Based on the above decisions, the Council rules that the 2009 GUSA Presidential Election shall be reinitiated with all original eight tickets (including the Lamb-Breen ticket and Dagher-Ibrahim ticket) on the ballot. A new election shall ensue in accordance with campaign rules set forth by the GUSA Senate in Section 16 of the Bylaws (see again Bylaw 17.04) and in accordance with the GUSA Constitution (see Article 1, Section 7 for Senate powers regarding the constitution and certification of elections) in a timely, reasonable manner.

The above rulings do not make a statement about the adequacy of the GUSA Constitution and Bylaws, nor do they make a statement about the role of Georgetown University policy in GUSA elections and in other GUSA affairs.

Photo taken from Flickr user UB1 under a Creative Commons license.

10 Comments on “BREAKING: GUSA Constitutional Council put Dagher-Ibrahim, Lamb-Breen back on ballot

  1. Way to go everyone who lobbied hard for this, from the candidates, to the Senators, to all the students! This will benefit everyone and we can finally have a fair election.

    Maybe the Georgetown bureaucracy can be beat? One step at a time, I guess.

  2. The Council did a great job handling this process and producing such a well put together decision in the incredibly short amount of time it had. Kudos to the three Council members.

  3. A solid and cogently-argued opinion, in this opinion of this law student.

    I would just like to address one point briefly mentioned at the end, regarding “the role of Georgetown University policy in GUSA elections and in other GUSA affairs.” Sophia Behnia veiledly threatened the Constitutional Council and GUSA at the meeting tonight that if they overturned the disqualification, GUSA would be violating Access to Benefits and she might file a complaint with CSP.

    As I have stated time and time again, it is not GUSA’s job to regulate other university policies. Stating that individuals must follow university policy is not the same as saying they may be kicked out of groups or disqualified from running for office for violating it.

    Otherwise, any time any officer violated any rule in the Student Code of Conduct – be it hosting an unauthorized party to having a candle in their room or ‘incivility towards a university official’ – they could be removed or disqualified.

    Should students running for ‘the highest office of the student body’ follow these rules? Sure. This is not saying that GUSA candidates can violate rules with impunity. Just because a ban on underage drinking is not in the by-laws does not mean that an underage GUSA candidate can carry a 40 on Healy Lawn. They are punished. Not by GUSA, but by the university.

    The appropriate reaction to this ruling, for future elections, is one (or both) of two things:

    1. Change the by-laws to explicitly prohibit posting in said areas (as are done in the Senate elections by-laws prohibiting putting flyers on or under doors)
    2. Advocate for Residence Life to levy harsher sanctions for candidates caught violating their rules so as to deter them.

  4. I agree whole-heartedly, Matt, mostly with the two recommendations at the end.

    It has always been my (and Fred Moore’s) contention that regardless of whether the rule was legal, it was necessary to disqualify or delay the election on Monday because the rule had become reality by that night; many candidates had purposefully not flyered for many days due to our warnings. We understand perfectly the intent of the bylaws (at least now that they have been communicated) but I believe it is understandable how, without any explanation, there may be confusion as to how University policies intersected with such bylaws. Such confusion, in fact, that no candidate ever argued that these were not within the bylaws and no GUSA official pointed this out to us until the election was already under way. The problem was created well in advance of Monday night, and we wish it had been resolved then.

    Regardless, I agree that a new election should provide fair opportunity for all candidates. But our disqualifications were fair in that they allowed this to happen. To go forward with the election originally would have allowed two candidates unrestricted flyering while other candidates, believing they were following the rules, did nothing. That is not the basis for a fair election. As odd as it may sound, our original ruling was, I believe, still the correct thing to do, even knowing (as we found out Tuesday) that it was likely to be overturned. Had we done nothing, or reinstated the candidates, they would have derived significant advantage from violating a policy that even they, at the time, believed was under our purview. We had to have a pause in order to allow all candidates equal opportunity to pursue these methods of reaching the students, especially when the margin of advancing could be as few as ten people in this runoff system.

    In addition to what Matt recommended, there needs to be a mandatory meeting between the GUSA Senate and the Election Commission early in the process to clear these sorts of things up in the future.

  5. Hi Will, thanks for responding.

    I think a lot of the problem was the fact that, as you say, the EC had not met with the Senate or President in advance, and that there was no Constitutional Council at the time to appeal to – in effect, making your decision to disqualify with only hours before the polls opened the final word. The fact that the Chair of the EC was unreachable after making such a decision was, however, inexcusable.

    As to the decision revolving around fairness: I sympathize. I agree that your ruling, well-intentioned but erroneous, allowed other tickets to gain a possibly unfair advantage. And with the margin of votes between 2nd and 3rd place – and thus between advancing and staying – could turn on relatively small number of votes, it might raise the question of whether the violations helped a candidate. However, because it is not in the elections by-laws, it is solely up to the Senate to decide. The vote must go on. Candidates after the primary may raise the issue of unfairness and, if it seems legitimate, the Senate can always vote to decertify the election and hold another one, with new rules, allowing all candidates a ‘fair shake.’

    So, I understand where you guys are coming from, but allowing the EC to make up rules, however common-sense, would severely harm GUSA in the future. This is exactly what happened with Khalil & Geoff: the EC made up a rule regarding laptops, even though the by-laws didn’t say anything about them, then, when K&G violated it, they were disqualified despite having a plurality of votes. It lead to a massive student outcry and severely damaged GUSA’s reputation. From then on, the new Senate was clear in rewriting the by-laws in making sure that only those offenses it deems disqualifiable can be.

    With IRV, however, this issue can be made moot in the future. Because IRV relies on ranking your preferences, if the EC decides to disqualify a candidate, it can keep them on the ballot. Then, after voting happens, if the DQ is upheld, all that happens is the voters who voted for the candidate shift down to their next-preferred choice.

  6. Agreed regarding IRV. And I do not believe that we, or any future EC, should be permitted to make up a rule or enforce it–rather, as the result of poor communication, we were not aware that this rule was unenforceable or that we were creating a rule at all. We did not think we were creating a “campaign regulation” because these policies already existed.

    For that reason, I find myself in the odd position of agreeing entirely with your interpretation of what should happen in the future while maintaining that our decision was made with imperfect information and therefore justifiable. Yes, the EC should not make up any rules just to ensure a fair election if it knows they fly in the face of the bylaws. I would not argue that, if we understood the rule was illegal, that we should enforce it–rather, as you said, we would allow the Senate to discuss following the election. Unfortunately we (and many of the candidates, apparently) believed that the regulation was not in direct violation of the spirit of the bylaws (again, we have now learned otherwise, but only once the election began). From some of the guidance we had received on the issue, it appeared we had to draw the line between GUSA bylaws and University policies ourselves.

    Again, learning from this, GUSA should create a briefing in which all candidates and ECs are fully informed on the manner in which GUSA wants to run the election. I think that will help avoid these problems in the future. We certainly did not mind either enforcing these policies or not enforcing these policies. To not do so all along would actually have made the process much easier for us.

    In any case, hopefully now a fair election can occur.

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  8. Oh–just wanted to note one more thing.

    Most of the Constitutional Council’s decision was relatively consistent and fair. They decided that the EC cannot step outside the bounds of the bylaws, ever, including when we suspended the election.

    That’s fine, but it means two things: that a number of GUSA Senators specifically told members of the EC to break the bylaws. Hmmm…if breaking the bylaws is so wrong, why was it the encouraged action on Tuesday afternoon? You cannot say that sometimes it is ok to break the bylaws for common sense reasons, but other times it is not ok to break the bylaws for common sense reasons. So that means be consistent GUSA Senate.

    Secondly, the Constitutional Council’s decision is not a “cogent” one. Their ruling is that the EC could not legally suspend the election–but instead of ruling that the election MUST continue, which is what that ruling implies, they said that this invalidates the election. WHAT?! That is a bizarre ruling, which has no precedent and makes little sense. So–even though pausing the election is outside the bylaws, if the EC pauses the election, the way to remedy it is to throw out the election? That’s like if the Supreme Court had said that the paused recount in 2000 was illegal–so instead, throw out the entire State of Florida’s electoral votes. This makes no sense at all. Sometimes I do not understand how these things are not picked up on by other people…or perhaps its that both rulings are more convenient then what an actually consistent ruling would require.

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  10. Don’t see what’s inconsistent about it.

    If the CC were to simply resume the election with the DQ’d tickets back on, voters who already voted for another ticket because their ticket was DQ’d could not go back. That would result in irreparable harm to the candidates.

    The only logical and consistent solution is to restart the election with all the tickets. It’s completely unlike your Florida analogy because both Gore and Bush were always on the ballot.

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